State v. Ng

• Decision Date: 18 February 1988
• Docket Number: No. 51909-9,51909-9
• Parties: STATE of Washington, Respondent, v. Wai-Chiu Tony NG, Appellant.
• Court: Washington Supreme Court

Page 32

110 Wn.2d 32

750 P.2d 632

STATE of Washington, Respondent, v. Wai-Chiu Tony NG, Appellant.

No. 51909-9.

Supreme Court of Washington,

En Banc.

Feb. 18, 1988.

Mestel & Muenster, John R. Muenster, Seattle, for appellant.

Norm Maleng, King Co. Prosecutor, Robert S. Lasnik, William L. Downing, Deputys, Seattle, for respondent.

BRACHTENBACH, Justice.

Wai-Chiu "Tony" Ng appeals his conviction of 13 counts of first degree robbery and 1 count of second degree assault. He alleges that the trial court erred (1) in admitting his confession, (2) in instructing the jury, and (3) in denying his motion for new trial based on inconsistent verdicts. ¹ We granted direct review and now affirm.

On February 19, 1983, 14 people were robbed and shot at the Wah Mee Club in Seattle's International District. Thirteen died. The lone survivor, Wai Yok Chin, identified two of the assailants by name and gave a description of a third. Subsequently, Benjamin Kin Ng and Kwan Fai "Willie" Mak were convicted of first degree aggravated murder. Benjamin Ng was sentenced to life without parole. Willie Mak received the death penalty. This court affirmed both sentences. See State v. (Benjamin) Ng, 104 Wash.2d 763, 713 P.2d 63 (1985); State v. Mak, 105 Wash.2d 692, 718 P.2d 407, cert. denied, --- U.S. ----, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986).

On March 30, 1983 after codefendant Willie Mak named appellant Wai-Chiu "Tony" Ng (no relation to Benjamin Ng) as the third participant, the King County prosecutor filed a complaint in Seattle District Court charging Ng with 13 counts of first degree aggravated murder and 1 count of first degree assault. Ng was placed on the FBI's "most wanted" list.

About 18 months later, while Seattle police officers and FBI agents were in Calgary, Alberta, Canada, to investigate a lead that Ng was living there, Canadian Police Sergeant Robert Newman arrested a "Jim Wong" for immigration violations. Suspecting that Wong was actually Tony Ng Sergeant Newman notified Seattle Police Lieutenant Robert Holter. Lieutenant Holter arrived at the police station and was introduced to the suspect. Immediately, Lieutenant Holter asked the suspect whether he was Wai-Chiu Tony Ng from Seattle and if his father's name was Shiu-Foo Ng. The suspect nodded "yes" to both inquiries.

Lieutenant Holter then informed Ng of his Miranda rights and asked Ng if he understood his rights. Ng replied that he understood. Holter also told Ng that he must be aware from the newspapers that Willie Mak had seriously implicated him in the Wah Mee robberies and killings and that he had caused his family a great deal of pain and suffering. Ng subsequently confessed to his participation in the robberies, but denied shooting anyone. After Lieutenant Holter prepared a written statement, he and Sergeant Newman signed it. Lieutenant Holter then read the statement aloud to Ng while Ng followed along. Ng signed each page, including a waiver of his rights.

After Canadian authorities returned Ng to Seattle, the King County prosecutor filed an information in superior court charging Ng with 13 counts of first degree felony murder and 1 count of first degree assault. Prior to trial, Ng moved to suppress his confession. The trial court denied his motion. At trial, survivor Wai Chin described the robbery and killings as he had in the prior Mak and Ng trials. The jury also heard Ng's confession. Ng testified that he had participated in the robberies and that he had been armed with a gun Mak had given to him. Ng also admitted he kept his share of the money stolen in the robberies. Ng denied using the gun, however. Ng further testified that he participated in the robberies only because Mak had threatened to kill him if he refused.

At Ng's request, the trial court instructed the jury on duress. The State did not object. The court's instruction 6, defining robbery, instructed the jury that robbery is not unlawful if it is "done under duress." Clerk's Papers, at 237. The court's "to convict" instruction on felony murder required the jury to find that Ng committed robbery "as defined in Instruction # 6", and that Ng or a participant in the robbery caused the particular victim's death. Clerk's Papers, at 238. The court's "to convict" instruction on first degree assault similarly required the jury to find that Ng "acted with the intent to commit the crime of robbery (as defined in Instruction # 6)". Clerk's Papers, at 244. The instruction defining duress required the State to prove "the absence of duress beyond a reasonable doubt." Clerk's Papers, at 252.

The court also instructed the jury that it could find Ng guilty of first degree robbery as a lesser included offense to felony murder, or guilty of second degree assault as a lesser included offense to first degree assault. On the third day of deliberations the jury sent out a question to the court regarding its instructions: "Does the term duress apply to all lesser charges?" Clerk's Papers, at 276. In response, the court advised the jury to refer to the instructions as given.

Ultimately, the jury convicted Ng of the lesser included offenses: 13 counts of first degree robbery and 1 count of second degree assault. The court denied Ng's motion for new trial, and sentenced him to seven consecutive life terms for seven of the robberies. The court set the remaining six counts of robbery plus a 10-year sentence for second degree assault to run concurrently with one of the life terms. Ng appealed. We accepted direct review and affirm.

I

Ng asserts that the trial court erred in admitting his confession. Ng contends that the trial court's error violated his rights under the Fifth and Sixth Amendments to the United States Constitution and article 1, sections 3 and 9 of the state constitution.

Under the circumstances of this case, we do not address the constitutional issues raised by Ng's arguments because we conclude that any error regarding the trial court's admission of his confession is harmless beyond a reasonable doubt and therefore not reversible error. A reviewing court should not pass on constitutional matters unless absolutely necessary to its determination of the case. State v. Claborn, 95 Wash.2d 629, 632, 628 P.2d 467 (1981); Ohnstad v. Tacoma, 64 Wash.2d 904, 907, 395 P.2d 97 (1964).

It is well established that constitutional errors may be so insignificant as to be harmless. State v. Guloy, 104 Wash.2d 412, 425, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020, 106 S.Ct. 1208, 89 L.Ed.2d 321 (1986); Harrington v. California, 395 U.S. 250, 251-52, 89 S.Ct. 1726, 1727, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 21, 87 S.Ct. 824, 826, 17 L.Ed.2d 705, 24 A.L.R.3d 1065, reh'g denied, 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967). "A constitutional error is harmless if the appellate court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error." Guloy, 104 Wash.2d at 425, 705 P.2d 1182. We note that certain constitutional errors may never be harmless. See Guloy, at 431-32, 705 P.2d 1182 (Brachtenbach, J., concurring). For example, the admission of an involuntary confession cannot constitute harmless error. See Guloy, at 432, 705 P.2d 1182 (Brachtenbach, J., concurring); see also Mincey v. Arizona, 437 U.S. 385, 398, 98 S.Ct. 2408, 2416, 57 L.Ed.2d 290 (1978); Payne v. Arkansas, 356 U.S. 560, 567-68, 78 S.Ct. 844, 850, 2 L.Ed.2d 975 (1958). However, in situations where a voluntary confession is erroneously admitted into evidence, its admission may constitute harmless error.

Here the trial court concluded that Ng's confession was voluntary. We agree. Where the record indicates there is substantial evidence from which the trial court could find by a preponderance of evidence that a confession was given voluntarily, the trial court's determination of voluntariness will not be disturbed on appeal. State v. Woods, 34 Wash.App. 750, 759, 665 P.2d 895 (1983); State v. Snook, 18 Wash.App. 339, 348, 567 P.2d 687 (1977). Ng concedes that he was advised of his Miranda rights and that he signed a written confession that stated it could later be used against him. Moreover, the record shows that Lieutenant Holter read Ng his Miranda rights in a slow, deliberate manner, unchallenged finding of fact 18, Clerk's Papers, at 359; that Ng indicated he understood his rights and desired to make a statement about his role in the robbery and killings, unchallenged finding of fact 19, Clerk's Papers, at 359; and that Lieutenant Holter again read Ng his Miranda rights before Ng read and signed a written confession, unchallenged finding of fact 24, Clerk's Papers, at 360. We conclude that the record contains substantial evidence supporting the trial court's conclusion that Ng's confession was voluntary. We conclude that a harmless error analysis is appropriate.

This court employs an "overwhelming untainted evidence" test in its analysis of constitutional harmless error. See State v. Guloy, 104 Wash.2d at 426, 705 P.2d 1182. Under this test, we look only at the untainted evidence to determine if the untainted evidence alone is so overwhelming that it necessarily leads to a finding of guilt. Guloy, at 426, 705 P.2d 1182. Applying this test here, we are convinced beyond a doubt that the overwhelming untainted evidence present necessarily would have led the jury to find Ng guilty of first degree robbery and second degree assault. Ng testified at trial that he was present at the Wah Mee Club at the time of the crimes, Verbatim Report of Proceedings vol. 6, at 865-66; that he was armed with a gun, Verbatim Report of Proceedings vol. 6, at 858; that he tied several victims and took money from them, Verbatim Report of Proceedings vol. 6, at 869-70; that he then waited for Mak and Benjamin Ng, Verbatim Report of Proceedings vol. 6, at 877; and that he kept his portion of the money taken from the victims, Verbatim Report of Proceedings vol. 6,...